Check it out, check it outers
UNCLOS is deeply flawed. The U.S. Senate should be deeply skeptical of claims that, because it’s an international agreement, we should therefore accede as a matter of course. One can be all for the rule of law, yet conclude that United Nations Convention on the Law of the Seas has complicated rather than simplified maritime law and security.
UNCLOS enshrined customary maritime law, but it also contradicted it by extending national claims far to sea, well beyond traditional claims, in the form of sui generis Exclusive Economic Zones. By fiat, this creation of EEZs established new claims and conflicts that never before existed. A bad idea.
Somewhere along the line, proponents of UNCLOS have adopted the argument that accession itself is the standard of behavior, and that having a seat at the table is of paramount importance. This becomes particularly problematic where the United Nations is concerned.
Further, China has espoused the doctrine of strict enforcement of its self-perceived UNCLOS rights through military and political intimidation. Moreover, China has, based upon its unitary interpretation of UNCLOS, assumed rights in the EEZs that not only weren’t intended by the framers, but which are troubling in their implications. These rights would extend security as well as economic rights to the limits of the EEZ, and in so doing preclude even routine military surveillance.
The widespread recognition of these fabricated rights would be the death knell of freedom of the seas, not its enablement. Furthermore, raising the ante of EEZ rights isn’t just problematic, but threatening in the old-fashioned sense – especially because, while the Chinese have prudently toned down their rhetoric in international fora, their aggressive operations in the maritime commons belie any notions that Beijing has moderated its opinions or policies regarding Chinese rights.
The particular issue of China within the UNCLOS accession debate has emerged only lately. I would suggest that earlier American endorsements of UNCLOS – every Chief of Naval Operations (CNO), for instance – are obsolete, and have been negated by new circumstances unimagined at the time of the convention's framing.
The trouble is that bad law drives out good law. My bottom line is first, that law is not always the answer; and second, that this isn’t the time to call for UNCLOS accession. It is time, instead, for a clear-eyed debate on the merits and demerits of UNCLOS, in the wider perspective of the rise of China, where we are headed with Beijing, and the role of international law in affecting the ambitions of rising powers.
Pic - "Great Powers who fail the sea power test - inevitably fail the longevity quiz too"